Appeal from the Judgment of Sentence October 26, 1987 in the Court of Common Pleas of Mercer County, No. 74 Criminal 1987.
Jack W. Cline, Mercer, for appellant.
Thomas S. Moore, Assistant District Attorney, Grove City, for Com.
Cirillo, President Judge, and Popovich and Montgomery, JJ. Montgomery, J., filed a concurring statement. Popovich, J., filed a dissenting opinion.
[ 377 Pa. Super. Page 456]
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Mercer County on October 27, 1987, against Joseph McFadden. McFadden was sentenced to thirty days to twenty-three months in the Mercer County Jail, and was fined three hundred dollars. We reverse.
On December 11, 1986, police were summoned to the Pine Hollow Trailer Court by Edward Thomas. A truck owned by Thomas had been damaged when Joseph McFadden backed his car into it. Thomas had heard the collision, had seen McFadden driving the car away, and had run after him on foot. He stopped McFadden at the entrance to the trailer park, and insisted that he return with him to his trailer. Thomas then called the police. McFadden did not remember the accident. Thomas testified that McFadden appeared to be unsteady while seated in the car, and further testified that he observed the sobriety tests conducted by the police, and that McFadden appeared to him to be drunk. He, as well as the officer who administered the tests, testified that McFadden had fallen when he attempted to perform a test which required him to bend from the waist with his eyes closed. The police officer also testified that McFadden smelled of alcohol, and almost fell from the car when he tried to get out of it initially.
McFadden was taken to a hospital for treatment for a cut received from his fall during the sobriety test. While there, he agreed to a blood test; the level of alcohol in his blood was found to be 0.28. He was arrested and charged with driving under the influence of alcohol under 75 Pa.C.S.A. § 3731(a)(1), (4). McFadden was found guilty after a jury trial. He filed post-trial motions which were denied. He then appealed to this court.
McFadden argues on appeal that he should not have been convicted of driving under the influence of alcohol because the Motor Vehicle Code applies only to the operation of vehicles on the "highways" and "trafficways" of the Commonwealth of Pennsylvania. 75 Pa.C.S.A. § 3101. According
[ 377 Pa. Super. Page 457]
to McFadden, the private drive of a trailer court does not constitute either a "highway" or "trafficway" as defined in section 102 of the Motor Vehicle Code. Because, after reviewing all the evidence presented in the light most favorable to the Commonwealth, we do not find that the private drive in question was a "trafficway" under Section 102 of the Motor Vehicle Code, we reverse and discharge appellant.
McFadden has couched his appeal to us in terms of a challenge to the denial of his motion in arrest of judgment. In reviewing a refusal to arrest judgment, we must consider whether the evidence was sufficient to uphold the verdict of the trial court. We must accept all the evidence and all reasonable inferences which may be drawn from that evidence upon which the fact finder could have based its verdict. If the evidence, viewed in the light most favorable to the verdict winner, is not sufficient to establish guilt beyond a reasonable doubt of the crime charged, then the motion should have been granted. Commonwealth v. Robinson, 351 Pa. Super. 309, 311-12, 505 A.2d 997, 998 (1986). In this case, if the Commonwealth failed to show that the drive on which the accident occurred was either a "highway" or a "trafficway" under the Motor Vehicle Code, the evidence would not have been sufficient to establish McFadden's guilt beyond a reasonable doubt. An essential element of this offense is that it have occurred on a highway or trafficway.
Section 3101 of the Motor Vehicle Code ...